Law Office of David J. Abeshouse

Business Dispute Resolution

ADR: Alternative Dispute Resolution --
B2B Arbitration and Mediation

Business-to-Business Dispute Resolution -- Business Dispute Resolution Lawyer, and Neutral Impartial Business Arbitrator and Mediator; Past Adjunct Professor of Alternative Dispute Resolution (ADR) Law at St. John's University School of Law; Member of Several Honorary Organizations for Business ADR Neutral Mediators and Arbitrators

Nassau County, Long Island, New York -- NY Metro Area (as well as nationwide, and internationally)

ADR: Providing You With Fast, Fair, Expert, Economical, Customized, Private Justice; and Keeping You Out of Court

The office: http://www.rxrrealty.com/portfolio/long-island/uniondale-mitchel-field/rxr-plaza/

Co-founder of the Attorney RoundTable ("ART"):
http://www.AttorneyRT.com
and
Member of the International Network of Boutique Law Firms:
http://www.INBLF.com

Audio introduction to David Abeshouse -- copy and paste into browser:
https://soundcloud.com/david-abeshouse/background-and-welcome-from

Why you may need what I do – in a nutshell:

Some quick background: My entire legal career has been devoted almost exclusively to Business Dispute Resolution, and after three decades of “practice,” I believe I do it better now than I did back then. But it’s not due only to practice; it’s also because -- having seen what works best for clients, over the long haul -- I now concentrate the vast majority of my efforts in the area of Alternative Dispute Resolution (ADR – sometimes called Appropriate Dispute Resolution). ADR consists of the alternatives to resolving business disputes in court – you probably have heard of the two main types of ADR: Arbitration and Mediation. But like many business people and even lawyers, you may not understand the stark differences between the two. Perusal of this page and the rest of this website should help explain those distinctions and why ADR may be very useful to you. If you wish to discuss any questions you may have, I am available through the “contact” page of this website, and am ready to provide you with some initial answers and additional resources, as well as my legal representation services or my impartial neutral services, if warranted. And if after discussion it turns out that another lawyer's skill set might be more appropriate for your situation, I'll be happy to refer you to other counsel.

Clients say that I am more empathic than other lawyers. This is not surprising, because I emphasize open communication as the basis of a good working attorney-client relationship, which in turn enhances the likelihood of more favorable results in the legal matter at hand. I am client-focused, whether for individuals or companies that I am representing as their lawyer-advocate or for individuals or companies that I am serving as neutral mediator or arbitrator.

-- Courts are the governmental “default” option – if you don’t provide for ADR in advance through a dispute resolution clause in your business contract, then in the event of a dispute (at which point the two sides usually can’t agree to anything), parties typically resort to court, thereby subjecting themselves to the considerable expense, risk, delay, distraction, inflexibility, and often irrationality of the court systems. Many judges see themselves as overworked and underpaid (and some are right), and juries can deliver irrational results, particularly as the average juror does not understand business cases. So while courts can work well for some business cases, court is not the right choice for most. And the court system is more burdened now than ever before, as budgetary pressures have caused restrictions on the hours of operation of many courts, cutbacks in personnel and other essential resources, and other dire circumstances, all resulting in even more attenuated delays and inefficiencies than in the past. So, we need ADR (Alternative Dispute Resolution -- Arbitration and Mediation) now more than ever.

-- In contrast to court trials, Arbitration generally is much faster (start to finish a typical moderately complex business litigation can take 3 – 5 years in court, whereas in Arbitration, that same case should take between 10 and 15 months, or a quarter to a third of the time); more streamlined (less discovery and motion practice, which often waste much time and money in court litigation); your case receives more individualized attention by an Arbitrator whom the parties select and who is expert in the subject matter involved in the case (as contrasted with most generalist judges who may hear many different types of cases in a given week); there is privacy to the proceeding which is not searchable “public record” like court cases; there is greater finality to the case with far less opportunity for endless appeals; with the aforementioned faster and more streamlined processes (and rarer appellate practice) comes lower costs even when including the fees of the neutral Arbitrator(s); and the parties can customize and control the outlines of the arbitration proceeding in advance in a wide variety of respects by including governing terms in the dispute resolution clause in their agreement (most lawyers lack the experience and knowledge to be able to advise parties regarding what terms best suit their situation, so consult an expert!).

Arbitration began to proliferate nearly a century ago, in response to the defects in the court litigation process. It has continued to develop and improve over the decades. When I serve as Arbitrator in a business case, I am essentially a private judge who manages and administers the case, moves it along while allowing rationally limited discovery and motion practice but not to the excessive degree permitted in court litigation, hears evidence, and renders a final binding Award that is enforceable and essentially non-appealable. With streamlined procedures and without the endless stream of appeals in the court system, arbitration typically costs much less than court litigation, even after factoring in the arbitrator's fees (which usually are a fraction of the lawyers' fees in a given case). Moreover, arbitration is the preferred dispute resolution modality for large and important disputes involving sophisticated parties, as well as for international disputes between business from different countries (as there's no presumed "home court" advantage).

-- And Mediation is entirely different. It can precede court litigation or Arbitration, and thus help avoid (or substantially narrow down) either. It also can occur simultaneously with either, or it can proceed independently. It is the ultimate in flexible, customized dispute resolution. The Mediator acts as a go-between among the parties, using finely-trained skills and experience in prior cases to enhance the participants’ communication and move them toward mutually beneficial resolution of the dispute, often directly resulting in their future ability to work together (which would not have been possible through court or even Arbitration), the future growth of both of their respective businesses, the future mending of family and business relationships, and other “win-win” results unique to a mediated solution. Ironically, parties who want their “day in court” rarely receive it if they go to court. (This is due in part to strict evidentiary rules that preclude hearsay and other ways that people speak in “real life” but that are inhibited by evidentiary objections made by opposing counsel and sustained by the judge.) In contrast, through Mediation, the parties get to say what they want, to tell their stories, and to do it in their own style, uninhibited by court rules and procedures, thereby truly giving them their “day in court” opportunity to be heard when they go to Mediation. When I serve as Mediator in a business case, I am a neutral impartial facilitator of the parties’ settlement negotiations, with a goal for the parties of negotiating and voluntarily entering into a binding settlement agreement. There may or may not be lawyers representing the parties during the mediation sessions. But the successes achieved through mediation sometimes border on the magical.

Put differently, mediation is a negotiation process facilitated by a trained, experienced, and trusted neutral person (who has no binding power of decision, unlike an arbitrator or judge). In mediation, the parties do not attempt to solve their problem on their own, but rather build consensus with the help of an impartial go-between, or Mediator; however, the parties themselves determine the eventual resolution. Mediation often results in customized win-win solutions not achievable by any other process (e.g., party-to-party or counsel-to-counsel negotiation, arbitration, or court litigation). Although mediation is uniquely useful in situations where the parties will have some continuing relationship going forward, it is highly effective in the vast majority of business disputes. Moreover, even in those occasional instances when mediation does not settle the entire dispute, it often can narrow scope of the claims and issues to be litigated, and also can be used again at a later stage, once the litigants have exchanged information and documents in discovery proceedings and have exhausted their tolerance for legal fees, and so are ready for the cost-effective solution that mediation provides.

Benefits of ADR apply in nearly all cases: Just as court is inadequate as a one-size-fits-all “solution,” neither Arbitration nor Mediation is right for ALL situations. However, in my considerable experience, ADR is better-suited for the vast majority of business disputes, whereas court is appropriate in far fewer circumstances. And this is due, in large measure, to the substantial inherent flexibility of the various ADR procedures (the parties and their lawyers -- if any -- control the processes in a way that is simply impossible in court), whereas court litigation is statutory and inflexible. So, again, one-size-fits-all rarely suits anyone. Yet, unfortunately, more cases end up in court than in Arbitration or Mediation. The reasons for this conundrum include myths, misconceptions, confusion, and general lack of accurate information about ADR on the part of business people and lawyers alike, lawyers’ concerns over their prospective legal fee earnings per case (clearly greater in court than in the ADR processes), and other negative syndromes that I personally hope to help debunk and defuse (including through my writing and public speaking efforts). The United States Supreme Court has issued several decisions strongly supporting B2B (business-to-business) dispute resolution through ADR over the past decade or so. Imagine how much better our court systems would work if ADR took more of the crushing burden of the huge volume of cases off their hands? With apologies to Voltaire: That’d be “the best of all possible [dispute resolution] worlds.”

So: If you want fast, fair, expert, economical, customized, private justice, and want to avoid the vagaries of court litigation in any future possible business disputes, you should turn to ADR (preferably in advance, when negotiating the dispute resolution provisions in your business agreement -- well before any conflict arises). And for business Arbitration and Mediation on Long Island and in the New York Metro area, I’d be pleased and honored if you’d turn to me for your business ADR needs, because that is the area or niche in which I have concentrated my practice, and I am passionate about it. I don’t purport to practice as a generalist in sixteen different specialties, while actually doing mediocre work in all and expert work in none. You wouldn’t go to your medical general practitioner or your psychiatrist to have orthopedic surgery performed on you; it’s the same in today’s complex legal world, where there is much to know about each separate discipline, and more developments occurring all the time. I will earn your trust, and you should feel confident that you’ve made the demonstrably correct choice of ADR counsel, or of impartial neutral Arbitrator or Mediator. Please read on, for more information below and on the following pages.

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I have been selected for inclusion in New York Super Lawyers -- Metro for 2007, 2012, 2013, and 2014; category: Alternative Dispute Resolution Law. This appears in the Super Lawyers - New York Metro magazine, on the SuperLawyers.com website, in the New York Times magazine section, and in other affiliated publications.

In 2012, I was selected as a Charter Member of the New York Academy of Mediators & Arbitrators (NYAMA), and a member of the NYAMA's parent organization, the National Academy of Distinguished Neutrals (NADN). In 2014, I was appointed to the Executive Committee for NY for a 2-year term. The NADN is a professional association consisting of attorney-neutrals distinguished by their hands-on experience in conflict resolution and by their commitment to the practice of Alternative Dispute Resolution. Membership is by invitation only and limited to neutral Arbitrators and Mediators with proven experience in the resolution of commercial disputes, recognized through a peer-nomination and client review process. Fifty-six top-tier ADR practitioners have been confirmed to the New York Academy state-wide, with only a handful on Long Island.
This organization is intended to provide a source of well-vetted business neutrals who are ready and able to serve a wide variety of business cases.

In 2012, I was selected for membership as a Fellow of the College of Commercial Arbitrators (CCA). According to its website (http://www.thecca.net):

The College of Commercial Arbitrators is a national organization of commercial arbitrators providing a meaningful contribution to the profession, the public and to the businesses and lawyers who depend on commercial arbitration as a primary means of dispute resolution. CCA promotes the highest standards of conduct, professionalism and ethical practice, develops “best practices,” and provides peer training and professional development. The College provides interaction and communication in the profession, and offers an easy means to identify those individuals whose professional training and experience qualify them to undertake the most complex and difficult arbitration assignments.

Membership is by invitation only, and there are fewer than sixty CCA Fellows in New York State, and fewer than five on Long Island.

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In 2014, I was inducted into membership in the International Network of Boutique Law Firms (www.INBLF.com). According to its website: "The INBLF is a network of highly credentialed single-discipline boutique law firms, across the United States and Canada. The INBLF is not an organization a lawyer or law firm can join by paying a fee. The INBLF carefully reviews the qualifications each potential member and invites only those who represent the highest level of knowledge, experience, and reputation to join. Each member carries credentials comparable or superior to what can be found at the highest-ranking full-service firms, without the insulating layers of intermediate attorneys between the client and the lawyer, and without the concomitant exorbitant billing rates."INBLF, founded in or about 2004, spans North America, and has partners internationally.

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My law practice helps entrepreneurs, professionals, and companies who have been stung personally, professionally, and financially by a painful business dispute, often at the hands of a partner, contractor, vendor, associate, or other affiliate.I am dedicated to resolving clients’ business disputes creatively through arbitration, mediation, or (where appropriate) court litigation to achieve success and peace of mind.

Some disputes require outright litigation battle to achieve resolution. Others are more susceptible to "creative" business dispute resolution. This means looking for solutions beyond the obvious. It also involves attempting to achieve results that are beneficial or at least palatable for both sides rather than mechanically resorting to bashing each others' heads in (a process that principally benefits the lawyers' pockets) simply because the attorney doesn’t know how to do anything else, or is unwilling to try. It also can lead to exploring whether there's a possibility for presently warring parties to work together in future. As one who also wears the hats of a professional neutral Arbitrator and Mediator, I understand this process well.
My message is straightforward and clear: For the vast majority of business disputes involving small or medium-sized businesses, Alternative Dispute Resolution (ADR) provides superior means of achieving resolution, in contrast to court litigation. The two most prevalent forms of ADR are arbitration and mediation.

Most entrepreneurs, professionals (including lawyers), and business managers and owners lack true and complete knowledge about ADR. I hope to educate and enlighten them regarding the advantages of ADR and avoiding more costly court litigation proceedings. I welcome the opportunity to discuss this with you and to debunk some of the inaccurate myths and misconceptions that seem to re-circulate, based on misinformation, old information, or lack of information about the realities of ADR. I also can tell you about the particular situations where – in contrast – court litigation is preferable to ADR or even necessary; one size does not fit all in the realm of business dispute resolution.

ADR allows parties to take more control over, and often lets them customize the resolution of, their disputes instead of simply having an unwelcome adjudication forced on them by a judge who is constrained by the rules more mechanically to apply limited facts to the law, rather than take a flexible and targeted approach for the greater good of the parties. ADR usually is cheaper, faster, less disruptive, and more beneficial to the parties overall. Disputing parties who utilize ADR usually come out more satisfied with the end result than do those who litigate in court.

If you would like to learn more, either in general or with regard specifically to your own present or future circumstances, please e-mail me through the contact page of this website, or call me at my office number. I'd be happy to speak with you and/or send you some written resources, at no charge. And if you'd like to learn a bit more about me and my approach to the practice of law and ADR, please peruse my "Personal Statement" page of this website.

I place particular emphasis upon effective, responsive communication with clients, helping to inform and guide them through the often unfamiliar and confusing maze of business litigation and Alternative Dispute Resolution. Other central services include helping clients avoid business disputes by performing litigation risk management (troubleshooting for potential areas of litigation liability); representing clients who have received a subpoena from a governmental agency such as the New York State Attorney General or the United States Department of Justice, mandating production of documents in connection with a governmental investigation; as well as occasionally reviewing, and/or negotiating confidentiality and non-competition agreements, commercial leases, and other types of contracts.

My firm practices in New York State and Federal trial and appellate courts, and before Arbitrators and Mediators in the New York metropolitan area. Based on my unique level of experience in Alternative Dispute Resolution (ADR), I provide ADR consultation services to other attorneys. I also serve as New York or Long Island local counsel to out-of-state lawyers or companies involved in business disputes in this region, respecting and protecting referring professionals' relationships with their clients.

My practice background includes a judicial clerkship with a federal Magistrate-Judge in the U.S. District Court for the Southern District of NY early in my legal training; service with a significant midtown Manhattan law firm; more than a decade as a partner in a medium-sized, high-quality Nassau County, Long Island law firm; and, since 2000, managing my own law practice and neutral practice.

In addition to my law practice (representing clients in business disputes), I devote significant efforts to my service as a professional neutral commercial Arbitrator for several major forums and as a private professional neutral commercial Mediator. As an Arbitrator (on the Commercial Panel of Neutrals of the American Arbitration Association, the International Centre for Dispute Resolution, and other forums), I hear and adjudicate business dispute cases, rendering binding Orders and Awards that are legally enforceable like judicial judgments. As a forum-based and private Mediator, I facilitate consensual resolution of business disputes, resulting in the parties' written settlement agreement. In each of my three principal capacities (lawyer, Arbitrator, and Mediator), I handle conflict management in the context of business dispute resolution.

I also have personal experience running a small business: From 1988 through 2007, as President of a domestic real estate company owned by an Australian client, I managed autonomously the business operations and commercial real estate holdings of this entity, acting in all respects as a commercial landlord of property in Manhattan. I regularly serve on the boards of New York not-for-profit corporations, and help to run several legal and business networking groups, enabling me to develop and foster a broad and deep network of trusted professionals on whom I can rely to assist my clients and colleagues for matters that are outside the areas of my expertise -- I am a niche practitioner, concentrating on B2B dispute resolution, rather than a jack-of-all-trades.

Business disputes (whether predicated upon claims of breach of contract between different companies or a dispute within a partnership, LLC, or corporations among its owners) should not be handled absent expert assistance. Not only should you not seek to deal with a brewing dispute by yourself, you also should be wary of hiring those whose legal practice focuses in other arenas (e.g., tax; corporate transactional work; real estate; general practice; personal injury; and the like) to handle the legal aspects of your business dispute. I don't presume to be able to practice in their areas; you should be cautious about having them venture into these specialized waters. In each instance, you likely are better off with someone truly conversant in the particular area of practice. By way of analogy: You wouldn't go to your psychiatrist for orthopedic surgery.
If you are interested in finding out more about how I might help you, please look through the following pages of this website or get in touch with me through the contact page. I would be happy to arrange a free initial telephone consultation of a duration appropriate to the matter.

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What is Business Litigation?

Business litigation (sometimes called commercial litigation) is the judicial (court) resolution of disputes encompassing issues relating to contracts, real estate, business entity (partnership, LLC, or corporation) dissolution, franchising, unfair competition, and other areas of commerce. But it need not be conducted only in court.

What is Alternative Dispute Resolution (ADR)?

ADR includes arbitration (binding), mediation (consensual), conciliation, early neutral evaluation, and other binding and non-binding means of resolving business disputes without resorting to court. ADR is appropriate for many types of cases and clients, and is far superior to court litigation in most (but not all) instances. Knowledgeable counsel can help determine which cases are most suitable for ADR and which should proceed through the courts; how to ensure in advance that you can move your business disputes into the ADR arena, rather than have them go to the governmental "default" option of court; and the best strategies for successful outcomes once you are involved in an arbitration or mediation proceeding, as they usually require lawyering skills and experience that are different from and/or in addition to those that work best in court.

ADR typically offers participants a menu of dispute resolution mechanisms that are more cost-effective and expeditious than court litigation, with better results; ADR provides the parties with greater control over procedures than they would have in court litigation, even to to the extent of selecting the arbitrator who will hear and determine the case, and avoiding juries; ADR often allows greater flexibility (e.g., bending evidentiary rules) to foster achieving business goals and practical solutions to serious conflicts; ADR affords parties the opportunity to avoid negative publicity and adverse precedent, as the proceedings are private rather than on the public record like in court; and ADR often allows for the opportunity to preserve ongoing business relationships that would be destroyed by court litigation. For example: Mediation permits the parties to customize the resolution of their dispute, a benefit unavailable through court or even arbitration; and the principal goals of arbitration include achieving fast, fair, expert, and economical justice. There are many good reasons that nearly all of the decisions of the U.S. Supreme Court over the past decade or more that determined questions relating to the arbitrability of business disputes have come down squarely in favor of broad application of arbitration to resolve business cases. Learning more about ADR is beneficial for business owners, lawyers, and anyone else who might become involved in a legal dispute.

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This law firm is a signatory to the CPR “Law Firm Pledge” a/k/a CPR Law Firm Policy Statement on Alternatives to Litigation (c) (mandating attorney knowledge about ADR, and promising to inform clients about the availability of ADR processes to permit and promote clients’ informed choices concerning dispute resolution):

For three years running (2010, 2011, 2012), David Abeshouse has been listed in Long Island Pulse Magazine’s Top Legal Eagles.According to the magazine:

Long Island’s Top Legal Eagles 2012To compile a list of top area lawyers, we invited LexisNexis® Martindale-Hubbell®, the company that has long set the standard for peer review ratings, to share their list of local lawyers who have reached the highest levels of ethical standards and professional excellence. Here are the 2011 links:

David Abeshouse has been awarded an A-V® Preeminent™ rat­ing (5.0 out of 5.0) from Martindale-Hubbell, which is the highest rating an attorney can obtain. This rating, determined through a national peer-review process, indi­cates that David Abeshouse has been recognized by other attorneys for possessing the highest levels of skill and integrity. He has been “A-V” rated continuously since 1995.

An AV rating shows that a lawyer has reached the height of professional excellence. He or she has usually practiced law for many years, and is recognized for the highest levels of skill and integrity.

CV, BV, and AV are registered certification marks of Reed Elsevier Properties Inc., used in accordance with the Martindale-Hubbell certification procedures, standards and policies.

Martindale-Hubbell is the facilitator of a peer review process that rates lawyers. Ratings reflect the confidential opinions of members of the Bar and the Judiciary. Martindale-Hubbell Ratings fall into two categories - legal ability and general ethical standards.

The office: http://www.rxrrealty.com/portfolio/long-island/uniondale-mitchel-field/rxr-plaza/

Note: Under the New York State Rules of Professional Conduct, Rule 7.1 (f), lawyers' websites such as this are considered "ATTORNEY ADVERTISING." See: 22 NYCRR Part 1200.

Please note: The information on this website has been prepared by the Law Office of David J. Abeshouse (LODJA) and is provided to inform the reader about the services LODJA offers to clients. It is intended for general information purposes only, and does not constitute legal advice. Links to websites are for your convenience only and do not represent endorsement of those sites; LODJA also is not responsible for the accuracy or propriety of the content of those sites. Although LODJA welcomes your e-mail communications, internet messages may not be secure, and cannot be treated as privileged or confidential information. Use of this web site does not constitute or create an attorney-client relationship. If you require legal advice, please consult with a competent attorney licensed to practice in your jurisdiction. David Abeshouse is licensed only in New York.